USLAW Network Client Conference, Vancouver, BC, October 2013

1. Sexual Misconduct in
Professional Liability Cases: Key
Strategies in Defending &
Litigating These Claims

2. Overview
 Attorney Misconduct:
 The Attorney-Client (Sexual) Relationship
 When Libido Subverts Credo
 Sex, Lies and Bar Complaints
 Coverage Concerns
 Litigating Cases of Sexual Misconduct
 Physician Misconduct:
 Boundary Violations
 Penalties
 Coverage Concerns
 When a Doctor’s Love Affair is Malpractice
 Litigating Cases of Sexual Misconduct

3. Attorney Misconduct
 Roughly 1.3 million lawyers nationally:
 Over 100,000 complaints alleging attorney misconduct are
filed annually.
 1,500 surveyed:
 7% admitted to having sex with a client
 32% knew another lawyer that had sex with a client
 Basis for most lawsuits/disciplinary actions against an
attorney:
 The attorney-client relationship itself!
 Consider: The attorney-client relationship depends on
emotion—trust, confidence, reliance, etc.
 Sex quickly confuses professional boundaries

4. Attorney-Client (Sexual) Relationship
 ABA Model Rules of Professional Conduct:
 Rule 1.8(j): “A lawyer shall not have sexual relations with
a client unless a consensual sexual relationship existed
between them when the client-lawyer relationship
commenced.”
 Comments to the Rule emphasize:
 Fiduciary nature of the relationship
 Unequal positions
 Clients often financially & emotionally vulnerable
 Is consent meaningful?
 Clouded professional judgment

5. Attorney-Client (Sexual) Relationship
 49 states, the District of Columbia, and the Virgin Islands
have adopted the Model Rules.
 State Variations of the Rule:
 Florida: rebuttable presumption that sexual conduct “exploits
or adversely affects the interests of the client,” if it post-dates
the inception of the attorney-client relationship;
 Texas: Voted against an express ban;
 California: a limited rule, “intended to prohibit sexual
exploitation by a lawyer in the course of a professional
representation;”
 New York: prohibition specific to clients in domestic relations
matters.

6. The Canadian Regime
• Sexual Harassment
– Prohibited by Canadian and provincial codes of conduct
• Other Sexual Misconduct
– CBA’s Code of Professional Conduct
• Issue not expressly addressed
– B.C.’s and Ontario’s codes of conduct
• Issue addressed through conflicts of interest rules
• Commentary
–
–
–
–
May affect lawyer’s ability to give objective advice
May interfere with lawyer’s fiduciary obligations
Conflict is not imputed to the firm
Not a conflict if another lawyer in the firm is handling the file

7. When Libido Subverts Credo
 Case Examples:
 Attorney D.K. exchanged legal services in a DUI case for
oral sex.
 Penalty: 1 year suspension
 Attorney T.L. had an affair with a divorce client AND
billed her for their sexual encounters.
 Penalty: Indefinite suspension
 Attorney C.C. was arrested for having sexual contact
with his client, a prisoner, during a meeting at the
detention center.
 Penalty: Could face four years in prison; banned from the
facility

8. When Libido Subverts Credo
 Case Examples:
 Attorney W.W. conditioned his representation of a
client on sex and later secretly taped a sexual
encounter. When law enforcement arrived, W.W. hid
the tape in his pants.
 The Indiana Supreme Court accepted the attorney’s
resignation.
 Indiana Judge accused of having a “physically intimate
relationship with a 26-year-old client.”
 Declined to renew judgeship for 2013…

9. Sex, Lies and Bar Complaints
 Disciplinary Measures:
 Actions against an attorney’s professional license:
 Disbarment, suspension, probation, public censure, disgorgement
of funds, future limitations on the nature/extent of a lawyer’s
practice
 Ex. ABA Model Rules of Lawyer Disciplinary Enforcement
 Civil lawsuits:
 Breach of fiduciary duty, intentional infliction of emotional
distress, battery, fraud, potentially malpractice
 Ex. McDaniel v. Gile, 281 Cal.Rptr. 242 (Ca. App. 2d. 1991)
 Criminal penalties:
 Rape, sexual assault/abuse, extortion, solicitation of prostitution
 Ex. The Florida Bar v. Scott, 810 So. 2d 893 (Fla., 2002)

10. Libido Up North
• Law Society of Upper Canada v. Neinstein (2008), 241
O.A.C. 199, reversed on other grounds 2010 ONCA 193
– Lawyer sexually harassed two individuals
– Court reduced suspension from 12 months to 3
months, citing mitigating factors
– Stated that longest suspension by law society to date was
18 months
• Budd v. Law Society of Upper Canada, 2012 ONSC 412
– Lawyer sexually exploited two minors and was sentenced
to nine months imprisonment
– Where sexual exploitation is established, the presumptive
penalty is revocation/disbarment, or permission to resign

11. Horny Canadian Lawyers, Eh?
•
Law Society of Upper Canada v. Hunter, [2007] L.S.D.D. No. 8 (L.S.U.C. Hearing
Panel)
– Former Treasurer of the Law Society of Upper Canada was suspended for 60 days for having an
affair with a client
– Prior to revealing to the client that he had been involved with other women during the course
of their relationship, lawyer had client sign acknowledgement form to the effect that he
complied with conflict of interest rules
•
Regular v. Law Society of Newfoundland and Labrador, 2010 NLTD 90, aff’d 2011
NLCA 54
– Lawyer and client involved in a 15-year personal, consensual and sexual relationship
– During relationship, lawyer assisted client with several legal matters, including her divorce
– Lawyer found to have failed to act with integrity, but was not in a conflict of interest when
representing his client in a divorce action
– No conflict of interest found in this case as the client insisted on this lawyer representing her
and thus waived her rights with respect to any conflict of interest on behalf of the lawyer

12. Getting to Know the Wife
• Szarfer v. Chodos (1986), 54 O.R. (2d) 663 (H.C.J.), aff’d 54
D.L.R. (4th) 383 (Ont. C.A.)
– Court found that the defendant lawyer breached his fiduciary
duty when he used confidential information obtained from his
client (that there were marital problems) to his client’s
disadvantage (to sleep with his wife)
– Client suffered nervous shock upon discovery of affair and
continued to suffer from depression thereafter
– Court awarded special damages of $13,663 and general
damages of $30,000
• Passarelli v. Startek (2009), 183 A.C.W.S. (3d) 569 (Ont.
Sup. Ct. J.)
– Engaging in a sexual relationship with a client’s wife likely
constitutes professional misconduct, but does not necessarily
amount to a breach of fiduciary duty

13. Getting to Know the Wife (Cont’d)
• Law Society of Upper Canada v. Daboll, [2006] L.S.D.D. No. 82 (L.S.U.C.
Hearing Panel)
– A lawyer who was retained by a client in child custody and support
proceedings was suspended for two months for having a sexual relationship
with his client’s wife
– Panel reduced length of suspension because of lawyer’s remorse and
cooperation with law society during investigation
• Law Society of Upper Canada v. Kaminer, [2012] L.S.D.D. No. 210 (L.S.U.C.
Hearing Panel)
– The lawyer was jointly retained by two spouses to initiate divorce proceedings
and subsequently engaged in a sexual relationship with one of the spouses
– During the course of the relationship, the lawyer revealed to the wife some
confidential information about the husband
– Hearing panel found that a lawyer breached the duty of loyalty to his client
– Lawyer suspended for six months

14. Coverage Concerns
 Whether prosecuting or defending an action, consider:
 PL policies generally cover an insured’s errors, omissions, or
negligent acts, that occur in the performance of rendering
professional services.
 Is a professional act or service involved?
 Is there a causal link between the act and the nature of the
professional attorney-client relationship?
 Were the client’s litigation interests affected?
 What does the policy exclude?
 How does the policy define “wrongful act?”

15. Sample Policy Language

16. Securing Coverage in a Sexual Misconduct
Case
 Coverage dictated largely by the pleadings:
 Plead at least one potentially legitimate covered claim.
 Negligence v. Intentional Act;
 A clear connection between the attorney’s services and
the harm alleged;
 Harm in the form of damaged litigation interests;
 An emotional/psychological injury, rather than bodily
harm itself.
 Avoid pleading the typical malpractice case.
 Focus on the abuse and breach of the fiduciary relationship.

17. Denying Coverage in a Sexual Misconduct
Case
 No “professional services” involved:
 The character of the act is intimate & personal in nature.
 The rendition of legal services is not the cause of harm.
 Sexual misconduct is not, in and of itself, legal
malpractice.
 Standard of care?
 Sexual abuse is intentional, malicious, and often criminal
 Focus on the policy language & exclusions:
 Sexual misconduct is often excluded by policy terms.

18. Canadian Coverage – Offending
Lawyer “Screwed”
• Duty to defend – exists if there is a mere possibility
that there may be coverage
– i.e. if it is not clear that the claim falls outside the policy,
an insurer has a duty to defend
• Non-Marine Underwriters, Lloyd’s London v. Scalera,
2000 SCC 24
– Insurer not required to defend insured against claims for
sexual assault through sexual battery
– If established that insured obtained consent from victim,
then there would be no cause of action and thus no duty
to defend by insurer
– If established that no consent was obtained, then intention
is inferred, and insurer not obliged to defend either

19. Physician Misconduct
 AMA Code of Conduct, Opinion 8.14:
 “Sexual contact that occurs concurrent with the patientphysician relationship constitutes sexual misconduct.”
 Hippocratic Oath:
 “I will come for the benefit of the sick, remaining free of all intentional
injustice…and in particular of sexual relations…”
 1,600 Surveyed:
 52% response rate:
 4% had dated patients;
 3% had sex with current patient;
 3% had sex with former patient;
 20% knew of colleague dating/intimate with patient.

20. The Slippery Slope
 Unlike the legal profession, medicine often requires physical
contact.
 The slippery slope: Medical Treatment  Sexual Harassment
 Confusion;
 Crossings;
 Violations.
 Patients uniquely vulnerable:
 Unconscious, mentally handicap/unstable, critically injured or
ill
 Patients often treated in compromising positions:
 Physician sexual misconduct is typically considered “abusive”
and results in criminal penalties.

21. Physician Misconduct
 Sexual interactions between physicians and patients:
 Detracts from the goals of the physician-patient
relationship;
 Exploits the vulnerability of the patient;
 Obscures the physician’s objective judgment; and
 Is detrimental to the patient’s well-being.
 Strict Standards:
 If non-sexual contact with a patient may be perceived as or
may lead to sexual contact, the physician should avoid the
non-sexual contact.
 At a minimum, a physician must terminate the physicianpatient relationship before initiating a sexual relationship.

22. Boundary Violations
 Case Examples:
 Chicago gynecologist’s “consensual” sexual act leads to
suspended license and a criminal conviction of sexual
assault.
 Doctor trades prescription pills for sex:
 Sentenced to 8 years in prison and ordered to pay a $400k fine.
 Doctor recommends patient perform oral sex to prepare
for upper-gastrointestinal endoscopy:
 Public censure issued by the California Medical Board.
 Doctor had sex with patient to “save her marriage.”
 Suspension “immediately lifted.” Be mindful of collusion!

23. Disciplinary Measures
 Actions against a physician’s medical license:
 Revocation, suspension, probation, public censure,
administrative fines, requirement of a chaperone
 Fla. Stat. § 458.331(1)(j): Authorizes discipline and presumes a patient
is incapable of consenting to sexual activity with his/her physician.
 Civil lawsuits:
 Intentional infliction of emotional distress, battery, invasion of
privacy, harassment, potentially malpractice
 Also causes of action against employers: negligent hiring/credentialing,
negligent supervision/retention, etc.
 Criminal penalties:
 Rape, sexual assault/abuse
 See e.g., Texas Penal Code § 22.011: Sexual assault by a health care provider is
punishable under the Penal Code as a second degree felony.

24. Coverage Concerns
 Is a professional act/service involved?
 “Professional” Act/Service: one that arises from a vocation,
calling, or skill and the labor or skill is predominantly
mental or intellectual rather than physical or manual.
 Act/omission must be specialized (i.e., requiring professional
skill/judgment);
 Look to the nature of the act, not the actor;
 Locality of the act is not determinative.
 Example, Buchanan v. Lieberman, 526 So. 2d 969 (Fla. 5th DCA 1988)
 Is there favorable policy language?
 Don’t assume an exclusion!

25. Sample Policy language

26. Securing Coverage in a Sexual Misconduct
Case
 Allege injury resulting from a vocation, calling, or
occupation, involving specialized knowledge.
 Consider: Is a predominately intellectual labor or skill
involved?
 Keep in mind: Sexual misconduct is sexual misconduct,
whether in a bar or the operating room.
 Key: Identify & allege a causal relationship between the
treatment provided, the nature of the professionalpatient relationship, and the injury at issue.
 Alternative: trigger coverage by alleging negligent hiring,
retention, supervision, and/or credentialing.

27. When a Doctor’s Love Affair is Malpractice
 In general, sexual misconduct is not malpractice, but:
 Dupree v. Giugliano, 20 N.Y.3d 921 (N.Y. 2012)
 A physician’s 9 month affair with a female patient whom he
was treating for anxiety/depression was medical
malpractice:
 NY medical malpractice standard: the challenged conduct
must “constitute medical treatment or bear a substantial
relationship to the physician’s treatment of the patient.”
 Doctor prescribed antidepressant medication, even switching
medications in response to patient’s concerns of a diminished
libido.
 Jury heard considerable testimony about “eroticized
transference” and a psychotherapist’s duty to manage the
same.

28. When a Doctor’s Love Affair is Malpractice
 Did the physician engage in sexual conduct on the
pretext that it was a necessary part of the treatment
sought?
 If so, raise the issue in your Complaint and develop the
theory through discovery.
 Atienza v. Taub, 239 Cal.Rptr. (Cal. App. 2d Dist. 1987)
 Be cognizant of your state’s medical malpractice
standard:
 Allow the standard of care in the community to frame
your pleadings and dictate the nature of your
allegations.

29. Denying Coverage in a Sexual Misconduct
Case
 Sexual misconduct/sexual assault of a patient is not
causally connected to the provision of “professional
services.”
 Example, Lindheimer v. St. Paul Fire and Marine Ins. Co., 643 So. 2d
636 (Fla. 3d DCA 1994).
 Respondeat Superior:
 Generally, conduct performed solely for the benefit of an
employee (including sexual misconduct) is not considered to be
within the “scope of employment.”
 Review the policy!
 Continues to be a common (and enforceable) exclusion
 Likely to fall under an “intentional act” exclusion

30. Final Thoughts
 Whether prosecuting or defending, always:
 Understand the policy or policies;
 Evaluate whether a “professional service” is involved;
 Identify & evaluate the applicable “standard of care.”
 Far better to prevent a sexual misconduct claim rather
than to defend against one.
 Unfortunately, perilous territory hasn’t been much of a
deterrent to intimate relationships, whether consensual or
procured through duress.
 These claims “aren’t going anywhere.”

31. Thanks for Listening!